State v. Holley

742 So. 2d 636, 1999 WL 624150
CourtLouisiana Court of Appeal
DecidedAugust 18, 1999
Docket32,156-KA
StatusPublished
Cited by9 cases

This text of 742 So. 2d 636 (State v. Holley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holley, 742 So. 2d 636, 1999 WL 624150 (La. Ct. App. 1999).

Opinion

742 So.2d 636 (1999)

STATE of Louisiana, Appellee,
v.
David HOLLEY, Appellant.

No. 32,156-KA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1999.

*637 Louisiana Appellate Project by Amy C. Ellender, Mer Rouge, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Assistant District Attorney, Counsel for Appellee.

*638 Before NORRIS, WILLIAMS and STEWART, JJ.

STEWART, J.

The defendant, David Holley, was convicted of Driving While Intoxicated-Fourth Offense ("DWI-4th"), a violation of La. R.S. 14:98, and sentenced to eighteen years at hard labor with credit for time served and one year without benefit of probation, parole, or suspension of sentence. On appeal, Holley argues that there is insufficient evidence to support his conviction and, as an alternative, that his sentence is excessive. We affirm.

FACTS

On May 12, 1994, at approximately 7:00 p.m., Holley was involved in an automobile accident with Roosevelt Brown ("Brown") at the intersection of Mansfield Road and Valley View Road in Shreveport, Louisiana. As Brown approached the intersection while traveling northbound on Mansfield Road, he noticed a southbound van enter the left turn lane. The van, which was driven by Holley, proceeded to turn left through the intersection approximately twenty feet in front of Brown's vehicle. The two vehicles collided, and Brown was knocked unconscious.

Officer G.P. Jackson ("Officer Jackson") of the Shreveport Police Department came upon the accident shortly after it occurred and observed Holley exit the van. According to Officer Jackson, Holley appeared very unsteady on his feet. Officer Jackson then began to question Holley about the accident. Officer Jackson testified that he smelled a strong odor of alcohol coming from Holley's breath. Also, Holley exhibited slurred speech, answered the questions in a slow and deliberate manner, and swayed back and forth during questioning. Based on his observations, Officer Jackson believed that Holley was intoxicated and called for assistance from the DWI unit to conduct field sobriety tests on Holley.

Officer John Davries ("Officer Davries"), a thirteen year veteran of the DWI unit, responded to the call. While questioning Holley about the accident, Officer Davries detected a "very, very strong odor of alcoholic beverage" on Holley's breath. Officer Davries also noticed that Holley exhibited slurred speech, spoke slowly and deliberately, appeared unsteady on his feet, and had extremely red, bloodshot eyes. The first sobriety test administered by Officer Davries was the "ABC" test. Holley was required to recite the ABC's while standing on a flat surface with feet together, hands at his sides, head tilted back, and eyes closed. According to Officer Davries, Holley failed to perform the test correctly. Holley had a two-foot gap between his feet and almost fell. He recited up to the letter "G" then mumbled and ended on "Z." Officer Jackson also observed Holley's performance of the "ABC" test and described it in the same way as Officer Davries.

Officer Davries then administered the horizontal gaze nystagmus ("HGN") test after determining that Holley suffered no injury which would impede his performance. Holley failed to correctly perform all three components of the HGN test, including the smooth pursuit test, the 45 degree angle test, and the maximum deviation test. Therefore, Holley received the maximum number of six points after completing these tests. Officer Davries testified that receiving the maximum number of points on the HGN test is a great indication of impairment.

Based on Holley's poor performance on the field sobriety tests, Officer Davries determined that he was intoxicated and transported him to the Shreveport Police Department Traffic Bureau for further processing. A video camera recorded Holley's actions while at the traffic bureau. The "ABC" test was again administered. During the course of the test, Holley skipped the letter "V" and inserted the letter "Z" in its place.

He again listed the letter "Z" at the end and then opened his eyes in order to stop *639 himself from falling. Holley refused to take the Intoxilyzer test and declined other field sobriety tests because of his bad back. However, Holley admitted to drinking two sixteen ounce beers prior to driving. Holley was charged with DWI— 1st and eventually released on his own recognizance.

Holley was later charged with DWI-4th in a bill of information filed on April 7, 1997. An amended bill of information was also filed on February 18, 1998, just prior to the jury trial of this matter. During trial, Holley stipulated to the three prior offenses. He did not put on a defense. The jury rendered a guilty verdict on the charge of DWI-4th. The trial court then sentenced Holley to eighteen years at hard labor, one without benefit of parole, probation, or suspension of sentence, and credit for time served. A motion to reconsider sentence was denied, and this appeal followed.

DISCUSSION

Sufficiency of the Evidence

Holley contends that the evidence was insufficient to support his conviction of DWI-4th in that the evidence failed to show he was intoxicated. Additionally, Holley requests review for constitutional or jurisprudential deficiencies of the three predicate DWI convictions used for enhancement purposes. Although Holley did not file a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821, we will nevertheless consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App. 2nd Cir. 2/26/97), 691 So.2d 1273.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard for appellate review of sufficiency of the evidence claims is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Bellamy, 599 So.2d 326 (La.App. 2nd Cir.1992), writ denied, 605 So.2d 1089 (1992). This standard applies in cases involving both direct and circumstantial evidence. When the evidence is viewed in the light most favorable to the prosecution, the facts established by the direct evidence or inferred from the circumstances must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2nd Cir.1988).

To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while intoxicated. State v. Iles, 96-256 (La.App. 3rd Cir. 11/06/96), 684 So.2d 38; State v. Courtney, 30,629 (La.App. 2nd Cir. 5/13/98), 714 So.2d 176. It is not necessary that a conviction of DWI be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La. 1983); State v. Courtney, supra.

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Bluebook (online)
742 So. 2d 636, 1999 WL 624150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holley-lactapp-1999.